October 13, 2007

Did the NSA Ask for Data Mining Before or After 9/11?

by emptywheel

I did my big timeline yesterday to try to pin down how much of what we suspect to be the warrantless wiretap program started in early 2001, rather than post-9/11 as Bush has always claimed. As I pointed out in my timeline, it's clear that Nacchio walked into the February 27 meeting expecting to talk about Groundbreaker. He remained willing to do Groundbreaker. But he was also asked to do something which he was unwilling to do.

My big question is: when did the access to the switches happen, when did the data mining of purportedly international data being, and when did the data mining of domestic data happen?

Let's start with this comment from William Ockham, who knows a lot more about the telecom side of this than I.

First, I think Nacchio and Qwest objected to at least two different
overtures from NSA. In early 2001, I think the NSA asked them to do
what AT&T did in San Francisco, set up a tap in to their fiber
optic backbone. In a sense, emptywheel is correct in saying that this
activity was part of Groundbreaker. I think it would be more accurate
to say that Groundbreaker was a cover for this activity. Qwest would
have objected on the grounds that FISA prohibited wire communication
interception inside the USA, even if the communication was "foreign to
foreign". Qwest was dumped from the Eagle Alliance (Groundbreaker
consortium) because it wouldn't play ball.

After 9/11, the NSA came back and asked for "metadata" about their
customers and Qwest refused based on the 1996 Telecommunications Act.
This may have been the trigger for Nacchio's prosecution (if one
assumes it was a selective prosecution).

Both of these illegal activities were precursors to the so-called
TSP. The fiber optic taps provided the means for intercepting
communications world-wide and the customer activity data mining was
provided the means for identifying the supposedly suspicions needles in
the haystack.

In light of pending litigation, I have been reluctant to
issue any public statements. However, because of apparent confusion
concerning Joe Nacchio and his role in refusing to make private
telephone records of Qwest customers available to the NSA immediately
following the Patriot Act, and in order to negate misguided attempts to
relate Mr. Nacchio's conduct to present litigation, the following are
the facts.

In the Fall of 2001, at a time when there was no
investigation of Qwest or Mr. Nacchio by the Department of Justice or
the Securities and Exchange Commission, and while Mr. Nacchio was
Chairman and CEO of Qwest and was serving pursuant to the President's
appointment as the Chairman of the National Security Telecommunications
Advisory Committee, Qwest was approached to permit the Government
access to the private telephone records of Qwest customers.

Mr.
Nacchio made inquiry as to whether a warrant or other legal process had
been secured in support of that request. When he learned that no such
authority had been granted and that there was a disinclination on the
part of the authorities to use any legal process, including the Special
Court which had been established to handle such matters, Mr. Nacchio
concluded that these requests violated the privacy requirements of the
Telecommunications Act.

Accordingly, Mr. Nacchio issued
instructions to refuse to comply with these requests. These requests
continued throughout Mr. Nacchio's tenure and until his departure in
June of 2002. [my emphasis]

In other words, the Administration made a request in fall 2001 for "access to the private phone records of Qwest customers." If Stern means "fall" at all literally, then this request came after 9/11--and it could well match the October 2001 time frame described for the start date of the warrantless wiretap program. Stern's reference to the Telecommunications Act makes it clear that this data relates to domestic customers. Now, Stern is responding directly to the USA Today article that exposed the domestic aspect of this program, and which made the following specific comment about Qwest.

Among the big telecommunications companies, only Qwest has refused to
help the NSA, the sources said. According to multiple sources, Qwest
declined to participate because it was uneasy about the legal
implications of handing over customer information to the government
without warrants.

So Stern's comment did little more than confirm the allegations of the USA Today article. (And note, the USA Today article also says this program started after 9/11.) That doesn't preclude an earlier disagreement between Qwest and the NSA over something else--as WO says, perhaps the interception of the switches.

But now let's look at another discussion of these issues. The other day, I posted this Slate article, quoting someone that sounds like it could be Nacchio or Payne.

Citing current and former government and corporate officials, the Times
reported that the companies have granted the NSA access to their
all-important switches, the hubs through which colossal volumes of
voice calls and data transmissions move every second. A former telecom
executive told us that efforts to obtain call details go back to early
2001, predating the 9/11 attacks and the president's now celebrated
secret executive order. The source, who asked not to be identified so
as not to out his former company, reports that the NSA approached U.S.
carriers and asked for their cooperation in a "data-mining" operation,
which might eventually cull "millions" of individual calls and e-mails.

Like the pressure applied to ITT a half-century ago, our source
says the government was insistent, arguing that his competitors had
already shown their patriotism by signing on. [my emphasis]

In this article, the ask is in early 2001--the same time frame as Nacchio's February 27, 2001 meeting. But it appears that this early request pertained solely to what was purported to be international data. From Slate again:

Before Bush authorized the NSA to expand its domestic snooping program
after 9/11 in the secret executive order, the agency had to stay clear
of the "protected communications" of American citizens or resident
aliens unless supplied by a judge with a warrant. The program President
Bush authorized reportedly allows the NSA to mine huge sets of domestic
data for suspicious patterns, regardless of whether the source of the
data is an American citizen or resident. [my emphasis]

This suggests that data mining occurred before 9/11, but only using data from purportedly international sources (as if they can tell one from another).

In other words, if you take just Stern's comment, the USA Today article, and the Slate article (and assuming all three are accurate), it appears that the difference between the February 2001 ask and the October 2001 ask may well have pertained to purportedly domestic data. I'm guessing, based on these articles, that they asked Nacchio in February 2001 to do data mining ... and then they asked again, in October 2001, this time to do data mining using data from Americans.

Comments

Lots of key stuff happened before 9/11 contrary to what most Americans believe...

The Afghanistan war was planned before 9/11.

The decision to launch the Iraq war was made before 9/11.

The decision to launch a war against Iran was made before 9/11.

The Patriot Act was written before 9/11.

The government's spying on Americans began before 9/11.

The government knew that terrorists could use planes as weapons -- and had even run its own drills of planes being used as weapons against the World Trade Center and other U.S. high-profile buildings, using REAL airplanes -- all before 9/11.

The government heard the 9/11 plans from the hijackers' own mouths before 9/11.

There was mention of the WaPo story last night before I went to bed, and I felt chills going up and down my spine. Someone, and I think I know who in the Bush administration, came into office already with an agenda to set up the infrastructure to do exactly what we are reading about now. This administration has shown that it does not care what the laws are. The only reason for this new legislation that is beginning to make its way through the House and the Senate is to provide the telecoms who did cooperate with retroactive immunity.

I strongly believe, before it is all said and done, that the spying was not limited to "security" matters. With that large an operation, it would have been very easy to extract information on political opponents and persons who could create difficulty for the administration. Is that why virtually everyone elected to Congress is so afraid of doing what is right?

Mr. Nacchio and Ms. Dana Jill Simpson both believed enough in the law to make a stand. They are both facing enormous consequences. No one ever said standing up for what is right would be easy. I just wish the people we elect to do that would do it, regardless of party affiliation!

I'll bet BushCo 'took full advantage' of the Sept. 18, 2001 Anthrax Attack to boot-strap the October request for Domestic Data:

http://en.wikipedia.org/wiki/2001_anthrax_attacks

---

It fits the BushCo pattern of using Fear to stampede the Congress into rash and ill-considered judgments that just happen to be checklist items on the Agenda. Kudos to Nacchio and Payne, too, for not compromising principle in the face of temporary hysteria.

For the ancient history reading list: the sale of the Magyar state telco; USWest's interest in a Prague to Istanbul pipe; Manchester telephone over cable partnered venture between USwest and Brit entities; Italy's incumbent carrier's takeover by the national carrier from France; Germany national telco hampered by old external plant and glacial pace of cronyist bargaining, although historically a prime supplier of switches throughout several southern rim of Mediterranean nations; French satellite launch entity serving Arab television and telephone uplink needs by providing payload space. All these currents preceded or were contemporaneous with JN's accession to top spot at newly merged entity variously comprised of and or renamed as SWBell, Mountain Bell, USWest, Qwest.

The redactions in the Nacchio CIPA filings make it very difficult to tell what happened at the Feb 2001 meeting with the NSA. Nacchio went in expecting to close a deal to supply fiber for a private NSA network as part of Groundbreaker. Instead, he was offered an opportunity to do something else, which he turned down (or at least deferred). The NSA kept coming back to Payne (Qwest's govt. contracts guy) with the same offer.

What we do know (or at least has been alleged by the plaintiffs in the suit against AT&T) is that at exactly the same time (Feb 2001), AT&T accepted a contract from the NSA to build a Network Operations Center that would give the NSA complete access to AT&T's network.

The information about the domestic data-mining indicates that the requests to the carriers for all of their historical call detail data (and commitments for future updates) came in October 2001. Nacchio's CIPA filings indicate that at one point the government tried to blur the difference between Nacchio's objections in Feb 2001 and Qwest's later objections to the data mining effort (which fell outside of the time period of the stock trading that got him in trouble). It appears that the judge in Nacchio's case recognized a distinction even if he didn't let Nacchio introduce the information at trial.

Thank you for blogging on the subject. As I strolled through the Web, I was amazed at how little buzz the WaPo front-page story created throughtout the progressive blogosphere. Especially for those in the Washington DC area who daily read the headlines.

I hate to say this but...it's not just mainstream media who has a case of group-herdinitis.

Minor correction to JohnLopresti's comment: the Mountain West / USWest / Qwest company doesn't overlap with the SWBell company. Southwestern Bell is in San Antonio, and after buying Pacific Telesys and Ameritech (California and MidWest) and becoming SBC, then bought AT&T and adopted that name for itself. And is now about to buy BellSouth.

This was the initial actions by the Bush administration to acquire and control all economic and political information in the US. With this type of information acquired illegally and that acquired legally but used illegally, they could start and then accelerate the power of government to transfer as much wealth as possible as quickly as possible from the citizens of the US to the Republican elite. US public assets, personal property thru eminent domain made possible by the SC, selling port facilities to foreign governments, intercepting US and international banking, financial, and monetary information to track terrorist but probably given to their corporate pals to cheat in business activity, plus endless other examples. Remember Bush and Cheney were first class screw ups in the business world and would have to cheat to make a nickel. They see themselves as a financial elite who are supposed to control everything. Everyone else is a serf, peasant, or slave depending on how loyal one is to them.

This was the initial actions by the Bush administration to acquire and control all economic and political information in the US. With this type of information acquired illegally and that acquired legally but used illegally, they could start and then accelerate the power of government to transfer as much wealth as possible as quickly as possible from the citizens of the US to the Republican elite. US public assets, personal property thru eminent domain made possible by the SC, selling port facilities to foreign governments, intercepting US and international banking, financial, and monetary information to track terrorist but probably given to their corporate pals to cheat in business activity, plus endless other examples. Remember Bush and Cheney were first class screw ups in the business world and would have to cheat to make a nickel. They see themselves as a financial elite who are supposed to control everything. Everyone else is a serf, peasant, or slave depending on how loyal one is to them.

I note that in the AT&T reference the project is referred to as Pioneer-Groundbreaker; I'm going to speculate that the fiber/signal split and the NSA secure analysis room was the Pioneer part of the hyphenated project. In the AT&T case filings I recall the testimony of an IT security expert conjectured that likely there were other similar secure rooms with fiber leading out to form a private network (presumably for the government); that private network along with a central network operations center at NSA would fall under Groundbreaker. Not that this separation really makes that much of a difference; Pioneer could have been a black budget add-on to Groundbreaker, which would still mean WO is correct considering Groundbreaker to be the cover for the splitter installation and building of the secure rooms.

I remember the Post 9/11 Memorial at the National Cathedral. It was raining. Dignitaries were being escorted into the cathedral under umbrellas emblazoned with "Global Crossing." I was consulting on a telecom matter at the time. My collegue also noticed it and said "Great product placement!"

I read that Qwest had several of its CyberCenters operational in the 1990s. According to WashingtonTechnology.com.
one such Qwest CyberCenter opened in 1999 in Sterling, VA a city that borders Dulles Airport (and where NSA has had an annex)

It's first (public) government contract was with the US Mint. Here's an excerpt:

Qwest CyberCenter May Mint More Government Business" by Jennifer Freer, published 8/1/2000 at WashingtonTechnology.com

[snip] Services at the Sterling center are in high demand, and Qwest already has begun construction to double the size of the center, Payne said.

Qwest selected IBM Corp. of Armonk, N.Y., to help build and provide operational support for its CyberCenters in North America. IBM will become an anchor tenant in the Qwest centers and purchase hosting space for its customers’ e-commerce initiative.

The centers throughout the United States and Europe are expected to generate $5 billion in combined revenue for Qwest and IBM over the next seven years, according to Qwest officials.

Qwest also partnered with KPMG Consulting of McLean, Va., to help build the Sterling center. Qwest owns 51 percent and KPMG the rest.

Despite having a stake in Qwest’s Sterling location, KPMG also has its own Broadband Solutions Centers that compete to some degree with Qwest centers. Its newest center opened in McLean, Va., in May. It, too, is addressing the needs of government customers and has spent $80 million to six centers across the country this year.

The McLean center will allow government agencies to save money and improve services by providing a means for developing technology solutions, proving technical concepts before making a major investment decision and supporting implementation for a government entity, said Dan Johnson, executive vice president for public services of KPMG Consulting.

Qwest’s Payne said the centers compete against each other, but on different levels. Agencies that need a specific scope of work created and a definition of content for an e-commerce application can go to KPMG’s center. Qwest’s center is more useful once the applications are defined, Payne said."

-----
Is this odd? If I understand this correctly, KPMG was Qwest's auditor, Qwest's partner, and Qwest's competitor. Where does IBM fit into the NSA spying?

Then this from Cambridge Telecom Report Oct. 04,1999:
Qwest and HP Announce Data Storage Agreement To Support Rapidly Growing Demand for Web Hosting - Qwest Communications - Company Business and Marketing

Qwest Communications International Inc., the broadband Internet communications company, Wednesday announced they have signed an agreement with Hewlett-Packard Company to launch a high-end data storage initiative leveraging HP SureStore E solutions that is expected to provide approximately $200 million in revenue to Qwest in the first year and up to $1.5 billion in revenue to Qwest over the three-year term of the agreement.

[snip]

Separately, Qwest also announced that it has started a major expansion of its CyberCenter operations -- the company's world-class data centers -- that will add seven additional centers by the end of 2000 to meet the growing customer demand for its application hosting, e-commerce and web-hosting services.

[snip]
Qwest currently operates CyberCenters in Burbank, Calif., Denver, Newark, NJ, Weehawken, NJ, San Francisco, Sterling, VA and Sunnyvale, Calif. Qwest is adding a second facility in Sterling, VA to better support a number of business and government customers located in that region of the country. These facilities are directly connected to the Qwest OC-48 Internet backbone, giving customers direct, scalable, high-speed access to their information."

---
Does this agreement with HP compete with its agreement with IBM? Seems like a lot of companies crammed into these cybercenters.

pdaly - I have no idea about the answer to your question; kind of looks like IBM and HP were doing different things here, I guess if they didn't care, then there wasn't a conflict. I dunno. What it does look like is that Qwest was growing so big, so fast, that they were partnering up with anybody and everybody willy nilly. Was this not part of their downfall? On a separate note, this guy Jim Payne sure pops up everywhere in these schemes/deals. Well, lookee here, Payne is now running a telcom shop for Bechtel, one of Cheney's favorite crooked, corrupt, crony corporations.

"Mr. Payne brings to Bechtel a distinguished record of more than 25 years of successful management experience with some of the largest U.S. telecommunications firms. Most recently, as the Senior Vice President and General Manager of a $400 million division of Qwest, he achieved a 300 percent increase in revenue in just 3 years and established Qwest as a major provider in the federal civilian and defense market. Previously, during 16 years with Sprint Communications, he led the strategic planning and marketing for the company's government division. He was the capture manager and operations manager of a $1.3 billion Federal Technology Service program for the General Services Administration that provides efficient, low-cost long-distance, Internet, and data transmission services to civilian agencies, including the Justice and Treasury departments, the White House, NASA, and the Veterans Administration." (my emphasis)

bmaz, Interesting... wonder why none of those servers seem to have backed up the missing WH emails? does it not seem odd? (/snark)

BTW: Scott Horton's at harpers.org reports on a case that appears to involve GOP persecutions of trial lawyers who contributed to John Edwards in 2004. For Rove/GOP, the first step would have required collecting financial data about these 'political opponents'. Hmmmm... what kind of system would be required to track and monitor such information...?

Recall that fired USAGs John McKay got sidewise of Rove for proposing a new database for FBI and law enforcement. Would McKay's proposal have revealed Groundbreaker? And if McKay got sidewise of Rove, then was Rove -- a political operative -- interested in Groundbreaker as a means to build his Permanent Majority...?

For extra fun, toss in Sen. Kyl's proposals for 'offshore' gambling, and then consider references to 'gambling casinos' throughout the Abramoff investigation -- but specifically in Alabama. Offshore gambling seems very well suited to money laundering, and there must have been some hopes of controlling the casinos politically -- perhaps through DoJ? Or Interior...? Or Groundbreaker...?

And speaking of random associations... When he was first asked about the Plame leak in Oct 2003, GW Bush talked about being 'inside the information'.

Bush seemed to imply that anyone OUTSIDE the administration was 'outside' The Information, and I remember thinking it was bizarre that he implied there was some kind of "INFORMATION" that only those within the administration were aware of. That's an interesting sidewise confirmation of a surveillance system aimed at the rest of us, eh?

Think any Dems or libertarian Repubs in Congress will realize the Bu$hBot$ have been surveilling their bank transactions, phone patterns, email, and web browsing? Probably not...

General counsel at Verizon was and is William Barr, Bush I's Attorney General, and an old CIA hand. Hard to believe he wasn't in on the secret plans. I wonder who else in the business world was -- and is.

General counsel at Verizon was and is William Barr, Bush I's Attorney General, and an old CIA hand. Hard to believe he wasn't in on the secret plans. I wonder who else in the business world was -- and is.

Like the pressure applied to ITT a half-century ago, our source says the government was insistent, arguing that his competitors had already shown their patriotism by signing on.

According to BushCo, breaking the law is patriotic and refusing to do so is unpatriotic. I'm frame it more narrowly, this is the case when it's the BushCo government that asks, and then pressures, citizen CEOs who run telecom companies.

What does it say about our government, that BushCo will not do its job to change the law so that citizen executives can comply with government requests without breaking the law?

Back to the infamous hospital visit where the president's counsel and chief of staff by many accounts, attempted to coerce our nations top law enforcement official, whose health was in jeopardy, to approve the illegal program.

The objective and methods are consistent.

BushCo pressures presidential administration insiders and citizen CEO outsiders to break the law, and calls them patriotic for doing so and unpatriotic for refusing to with regard to a surveillance program that enables the government to break the law.

I'm not sure that the exact timing of the request for domestic surveillance to Qwest is all that important; it's more important that the contractual vehicles, the systems (requirements, specification, implementation, training life cycle management), and especially the legal theories were all in place, so that when the request was made, everything was ready to go quickly. Here, as in so much--everything?--else, 9/11 was at best an excuse or a trigger to set into motion long-laid plans.

In any case, there's no reason to think that domestic surveillance hasn't been going on for the whole time. Remember that the entire Conservative movement is outcomes-based -- they write and enforce and interpret the law based on what they want to have happen, period ("the intelligence and the facts were fixed around the policy"). So, if some Federalist Society elf in the basement of Cheney's bunker had cooked up the right kind of theory -- say, that any mail containing packets that could reasonably be expected to go through a foreign switch* could be deemed foreign mail and subject to surveillance and permanent archiving -- then domestic surveillance could have started w-a-a-a-y before 9/11.

Talking about domestic surveillance: I've always thought that the bottleneck had to be translators. Surely machine translation of Arabic languages isn't good enough for serious intel (especially if the targets use word code, as they are known to do). And there's a secular shortage of Arabic translators, not just because Rummy fired all the gay ones. So we've got massive volumes of data, on the one hand, and a shortage of translators, on the other, and you have to wonder if the translators would be best used for this material in any case.

Of course, if you assume that the targets of the surveillance were speaking English--that is, the surveillance was domestic--then the difficulty of a translation bottleneck disappears and everything becomes simple and clean.

Qwest CyberCenters are fairly standard high-end web hosting setups. Don't forget that Groundbreaker was, at least in its public incarnation, all about outsourcing non-mission-related IT infrastructure. If Qwest was going to do what AT&T did, then a CyberCenter would have been where they did it, but they also could have been do nothing more than trying to sell their standard stuff.

One of the unasked questions about Groundbreaker revolves around this notion of outsourcing IT infrastructure of a covert agency. Nowadays, it is really easy to see that IT infrastructure outsourcing is one of the dumber ideas from the Internet boom. Back then, I can see corporate managers buying in to it, but it boggles my mind that the NSA ever bought in to it. The question for me is, were they that stupid or was it always a cover for the domestic spying? Normally, I follow Napoleon's maxim (Never assume malice where mere incompetence will suffice as an explanation), but this is a tough one.

I found the name of the Tom Clancy novel that I referred to in a long ago comment: "The Teeth of the Tiger."

As noted before, this novel is horribly written, but it is more annoying that the story line is increasingly describing today's world of eavesdropping, extrajudicial killing, and lack of Congressional oversight--all in the name of fighting terrorists:

My synopsis of The Teeth of the Tiger:
a black ops unit has presidential approval to define and track down, and extrajudicially kill "terrorists," based on their own interpretation of intelligence gleaned from worldwide eavesdropping.

To pay for this project of US assassins (who have pre-signed Presidential pardons in a safe and who use an "untraceble" killer toxin), the president's friends set up a Private Equity Investment Corporation in DC. Its physical location allows its workers to silently intercept all NSA data and use it (in addition to hunt terrorists) to game the stockmarket for profit. This black ops corporation is self sufficient, receives no Congressional money and therefore has absolutely no Congressional oversight.